United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
CHARLES J. KAHN, JR. UNITED STATES MAGISTRATE JUDGE
the court is a petition for writ of habeas corpus filed under
28 U.S.C. § 2254 (doc. 1), with supporting memorandum
(doc. 2). The matter is referred to the undersigned
magistrate judge for report and recommendation pursuant to 28
U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After
careful consideration, the undersigned concludes that no
evidentiary hearing is required for the disposition of this
matter. Rule 8(a) of the Rules Governing Section 2254 Cases
in the United States District Courts. The undersigned further
concludes that the pleadings and attachments before the court
show that petitioner is not “in custody” for
purposes of federal habeas jurisdiction, and that the
petition should be dismissed.
AND PROCEDURAL HISTORY
is a resident of Crestview, Florida. (Doc. 1, Attach.
(mailing envelope); Doc. 2, p. 8 (signature block)).
Petitioner names three respondents in this action: the State
of Florida; the Department of Revenue; and Stephanie Barlow,
the mother of his children. (Doc. 1). Petitioner is
challenging child support modification and enforcement
orders, including a recent contempt order entered by the
Okaloosa County Circuit Court in Case No. 2016-DR-0780 MF, on
the grounds that the court improperly included his
veteran's disability benefits as income for purposes of
calculating his child support. (Docs. 1, 2). As relief,
petitioner seeks to vacate “all such voided orders and
judgements [sic].”) (Doc. 1, p. 15 in ECF).
federal district court may entertain a habeas corpus petition
only from a petitioner “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3); see also 28 U.S.C.
§ 2254(a). This “in custody” requirement is
jurisdictional. Stacey v. Warden, Apalachee Corr.
Inst., 854 F.2d 401, 403 (11th Cir. 1988). Custody is
determined as of the date the habeas petition is filed.
Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968).
filed his habeas petition on March 6, 2018. (Doc. 1). It is
apparent from the face of the petition and attachments that
petitioner was not incarcerated on that date. Although
petitioner indicated “Okaloosa County Jail” where
the petition form directs him to identify his “Place of
Confinement”, (doc. 1, p. 1 in ECF), the mailing
envelope for his petition indicates a non-prison return
address, as does the signature block in his supporting
memorandum. (Doc. 1, p. 54 in ECF; Doc. 2, p. 8 in ECF).
Within the body of his petition, petitioner describes his
custodial status as “Schedule[d] to go to jail March
21, 2018.” (Doc. 1, p. 5 in ECF). Petitioner attaches a
child support enforcement and contempt order, dated February
22, 2018, which provides in relevant part:
4. Sentence to Confinement: Unless
the purge payment of $500.00 is paid to the
Clerk of the Court no later than MARCH 21,
a. HERIBERTO RUIZ-SIERRA is sentenced to
confinement in the OKALOOSA County Jail
until purged of the contempt by paying
$500.00, which shall be applied toward the
child support arrearage, plus sheriff's fee, meal charge,
and the costs of transportation.
(Doc. 1, Attach. at 27 in ECF (Order filed 02/22/2018)) (bold
in original, underscore added).
Supreme Court has recognized various circumstances where
restraint short of actual, physical custody is deemed to
satisfy the “in custody” requirement. As the
Eleventh Circuit explained in Howard v. Warden, 776
F.3d 772 (11th Cir. 2015):
[I]t is by now well-settled that the “use of habeas
corpus [is] not . . . restricted to situations in which the
applicant is in actual, physical custody, ” Jones
v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 375, 9
L.Ed.2d 285 (1963). Instead, petitioners need only show that
they are subject to a significant restraint on their liberty
that is not shared by the general public. Id. at
240-43, 83 S.Ct. at 375-77. For example, the Supreme Court
has extended habeas review to petitioners released on parole,
id. at 242-43, 83 S.Ct. at 377, released on their
own recognizance pending execution of a sentence, Hensley
v. Mun. Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 1575,
36 L.Ed.2d 294 (1973), and free on bail, Lefkowitz v.
Newsome, 420 U.S. 283, 291 & n. 8, 95 S.Ct. 886, 891
& n. 8, 43 L.Ed.2d 196 (1975).
Id. at 775.
petitioner in Hensley, supra, was sentenced to a
year of confinement and a $625 fine, but released on his own
recognizance while seeking habeas relief. The Court
considered three factors in determining whether he satisfied
the “in custody” requirement: (1) whether the
petitioner was subject to restraint on his liberty not shared
by the general public; (2) whether incarceration was “a
speculative possibility that depends on a number of
contingencies over which [the petitioner] has no